21/05/2010 EPO Practice on Patentability for Computer Implemented Inventions Clarified

On 12 May 2010 the Enlarged Board of Appeal of the European Patent Office issued an opinion on the patentability of computer programs (case number G3/08). In the fifty-five page opinion, the Enlarged Board of Appeal (EBA) confirms the established practice of the Boards of Appeal of the European Patent Office (EPO), and provides clarifying comments on some aspects relating to the patentability of Computer Implemented Inventions.

In the opinion, the EBA states: “ It would appear that the case law, as summarized in T 154/04, has created a practicable system for delimiting the innovations for which a patent may be granted.” According to T 154/04 the assessment of a claim to a Computer Implemented Invention includes: examining whether the claimed subject-matter fulfils the “invention” criterion under Articles 52(2)(c) and (3) EPC, requiring a technical character; as well as examining whether the claimed subject-matter involves an inventive step under Articles 52(1) and 56 EPC, requiring the invention to solve a technical problem.

In effect, the EBA opinion increases the predictability as to what is required for an invention to enjoy valid patent protection, thereby providing a further stabilizing factor for entrepreneurs and companies developing products including software. Additionally, it may be useful in national court proceedings as guidance on the interpretation of the EPC, in particular as regards the boundaries of the concept of patentable invention under the European Patent Convention (EPC).

For more information on this topic, please call your Zacco or Albihns.Zacco contact person.

Contributor: Michael Andersson Michael is Manager for the Software & Electronics Patent Team at the Alihns.Zacco Stockholm office.